BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130008198 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the issuance of a Notification of Eligibility for Non-Regular Retired Pay at Age 60 (15-Year Letter).

2.  The applicant states:

* he was released from service in 1991 and early retirement was not offered; he was ultimately discharged in 2005 but he was not aware of the 15-year letter
* he did not request to be removed from the Active Guard Reserve (AGR) and he has several letters from commanding officers not to remove him from the AGR 
* he was released from active duty in 1993 due to downsizing and he was placed in the U.S. Army Reserve (USAR) Control Group (Reinforcement) with 18 years of service toward non-regular retirement
* in or about 1999, he began receiving letters related to promotion consideration to lieutenant colonel (LTC)
* he questioned those letters/notifications and when he called to inquire about those letters, he was told they were issued in error
* he was not informed about the 15-year letter at that time and he believes he was not given the opportunity to request early retirement
* he tried to sign up for correspondence courses for the purpose of accumulating points but he needed a physical; something he had great difficulty in scheduling
* by the time his physical was scheduled, he was discharged from the USAR
3.  The applicant provides:

* 2005 Honorable Discharge Certificate
* 1993 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Human Resources Command (AHRC) Form 249 (Chronological Statement of Retirement Points)
* Congressional correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was born on XX November 1953.

2.  He previously had enlisted service in the Puerto Rico Army National Guard (PRARNG) from 4 November 1975 to 13 May 1979.  

3.  He was appointed as a Reserve commissioned officer of the PRARNG and executed an oath of office on 14 May 1979.  He attended the Quartermaster Officer Basic Course.  He was promoted to captain on 9 May 1986.

4.  On 29 April 1989, he entered active duty in the AGR program.  He served in a variety of stateside or overseas assignments.  

5.  On 30 November 1992, he submitted a DA Form 4187 (Personnel Action) and requested termination of active duty effective 4 January 1993, per the results of the 1992 AGR Continuation Board.  

6.  Accordingly, on 4 January 1993, he was honorably released from active duty and he was transferred to the USAR Control Group (Reinforcement). 

7.  He was promoted to major (MAJ) in the USAR on 8 May 1993.

8.  On 9 May 2000, by letter, the U.S. Total Army Personnel Command (PERSCOM), St. Louis, MO, notified him that he was considered for promotion to LTC by the September 1999 Reserve Components Selection Board (RCSB) but he was not selected. 

9.  On 8 March 2001, by letter, PERSCOM, St. Louis, MO, notified him he was considered for promotion to LTC by the September 2000 RCSB but he was not selected. 

10.  On 28 February 2002, by letter, PERSCOM, St. Louis, MO, notified him he was considered for promotion to LTC by the September 2001 RCSB but he was not selected. 
11.  On 4 February 2003, by letter, PERSCOM, St. Louis, MO, notified him he was considered for promotion to LTC by the September 2002 RCSB but he was not selected. 

12.  On 19 February 2004, by letter, PERSCOM, now called the U.S. Army Human Resources Command (HRC), St. Louis, MO, notified him he was considered for promotion to LTC by the September 2003 RCSB but he was not selected. 

13.  On 5 January 2005, HRC-St. Louis published Orders D-01-500656, ordering his honorable discharge from the USAR effective 5 January 2005 after having failed selection for promotion. 

14.  His AHRC Form 249 shows he completed 18 qualifying years of service between November 1975 and November 1993.  Furthermore, aside from the      15 annual membership points, he did not earn any retirement points between November 1993 and January 2005. 

15.  On 3 February 2005, an HRC-St. Louis official responded to the applicant's Member of Congress inquiry.  The official stated that on 7 May 2000 the applicant was identified as being twice non-selected by a Department of the Army mandatory promotion board.  He had a total of 18 years of qualifying service.  He was granted 3 years to complete a total of 20 years of qualifying service and was awarded a new mandatory removal date of 5 November 2004.  Because he did not attempt to complete his 20 qualifying years of service by the mandatory removal date, he was discharged in accordance Title 10, U.S. Code (USC), section 14505.  The applicant misinterpreted the promotion board process.  His actual 3-year extension to complete 20 qualifying years of service occurred with his initial appearance before the board, therefore only one 3-year extension was granted.  If the applicant was able to locate a unit to accept him as an enlisted member, he may return to the USAR and complete his 20 years. 

16.  On 6 April 2005, an HRC-St. Louis official notified the applicant's Member of Congress that as stated in the previous response dated 3 February 2005, the applicant was identified as being twice non-selected for promotion by a Department of the Army mandatory promotion board.  At the time, he had a total of 18 years of qualifying service.  He was granted a 3-year extension to 5 November 2004 to complete a total of 20 years of qualifying service to be eligible for retired pay at age 60.  During that period of time, he did not attempt to complete his 20 qualifying years of service which resulted in his discharge from the military in accordance with Title 10, USC, section 14505.  He was issued orders for a physical examination in error during the process of his separation from the military.
17.  An advisory opinion was received from HRC on 7 June 2013 in the processing of this case.  The advisory official recommended denial of the applicant's request.  The advisory official stated a review of the applicant's records shows he was in the AGR program.  He requested to be terminated from the AGR program via a DA Form 4187.  He was then identified as a two-time non-select for promotion in 2001, with a total of 18 years of qualifying service.  He was awarded a new mandatory removal date of 5 November 2004, which granted him a 3-year extension in order to complete 20 qualifying years of service in order to be eligible for retired pay at age 60.  He did not attempt to complete his qualifying years which resulted in his honorable discharge in January 2005.  He does not meet the statutory requirements (Title 10, USC, section 1331(a)) and he did not attempt to complete the 3-year extension awarded to him in order to complete 20 years of qualifying service to be eligible for retired pay at age 60.  Therefore, HRC opines he is neither eligible nor entitled to receive a Notification of Eligibility for Retired Pay at Age 60 (15-year or 20-year letter). 

18.  The applicant was provided with a copy of the advisory opinion on 13 June 2013 but he never responded. 

19.  The applicant turned 60 years of age in November 2013.

20.  Title 10, U.S. Code, section 12731 provides the legal age and service requirements for age and service for Reserve non-regular retirement.  It states that a person is entitled, upon application to retired pay if the person has attained the applicable eligibility age, has performed at least 20 years of service computed under section 12732 of this Title; and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

21.  Title 10, USC, section 12731b states that in the case of a member of the Selected Reserve of a Reserve Component (RC) who no longer meets the qualifications for membership in the Selected Reserve solely because the member is unfit because of physical disability, the Secretary concerned may, for the purpose of Section 12731 of this title, determine to treat the member as having met the service requirement and provide the member notification required if the member completed at least 15 years, but less than 20 years of qualifying service for retirement purposes.  

22.  There are other situations where a 15-year letter is issued.  In order to be eligible for the 15-year letter, the Soldier must be a member of the Selected Reserve (unit member) where a unit was inactivating, reorganizing, or relocating as part of the Transition Assistance Management Program.  As a selected Reserve member with at least 15 years of qualifying service, the member must be eligible under Title 10, USC, section 1331a to apply for retired pay at age 60.  The member's eligibility is determined as follows: 

* in the selected Reserve
* completed at least 15 years of qualifying service between 1 October 1991 and 30 September 1999
* completed the last 6 years of qualifying service while a  member of a Reserve Component
* requested a transfer to the Retired Reserve

23.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  The regulation, in effect at the time, specifies promotion from MAJ to LTC required completion of a maximum of 7 years in the lower grade.  Any person, who twice fails to be selected for promotion to the grade of LTC, will not be considered again for promotion.  All officers not qualified for retention will be removed from an active status within a specified number of days/months after the selection board submits its results to Headquarters, Department of the Army.  

24.  Army Regulation 135-175 (Separation of Officers) prescribes the policies and procedures for the discharge of Reserve officers.  This regulation specifies that an officer, who has completed his/her statutory military service obligation, will be discharged for failure to be selected for promotion after a second consideration by a RCSB, with or without the officer's consent.  

25.  Title 10, USC, section 14504 provides that an officer of the Reserve Active-Status List who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

26.  Title 10, U. S. Code, section 12646(a) states that, if on the date prescribed for the discharge or transfer from an active status of a reserve commissioned officer he is entitled to be credited with at least 18, but less than 20, years of service, he may not be discharged or transferred from an active status without his consent before the earlier of the date on which he is entitled to be credited with 20 years of qualifying service or the third anniversary of the date on which he would otherwise be discharged or transferred from an active status.


DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, RC members are required to complete 20 years of qualifying service in order to be eligible for non-regular retirement.  A qualifying year of service for nonregular retired pay is a full year during which a Regular or Reserve member is credited with a minimum of 50 retirement points.

2.  The applicant served in the Selected Reserve from November 1975 to January 2005.  He completed 18 qualifying years of service toward non-regular retirement.  Between November 1993 and January 2005, aside from membership points, he did not earn any retirement points toward his retirement.  Furthermore, despite having been not selected for promotion to LTC by two boards, he was extended for 3 more years to accrue sufficient points for retirement.  He failed that too.  Since he did not complete 20 qualifying years, he is ineligible for the issuance of a 20-year letter. 

3.  A member of the Selected Reserve of an RC who is medically disqualified for continued service in an RC may be considered as having met the service requirement and may be issued a 15-Year Letter if the member completed at least 15 years, but less than 20 years of qualifying service for non-regular retirement purposes.  The applicant was not discharged from the Selected Reserve for any medical reason.  Likewise, he was not discharged due to inactivation, reorganization, or relocation of his unit.  He was discharged due to failing promotion selection.  As such, he does not meet the statutory or regulatory requirements for the issuance of a 15-year letter.  Therefore, he is not entitled to the requested relief.

4.  Contrary to his contention that he did not request to be removed from the AGR program, the evidence of record shows he submitted a DA Form 4187 requesting to be removed from this program, albeit it may have been in response to the results of the 1992 AGR Continuation Board.  He was released and transferred to the USAR Control Group (Reinforcement).  While in the USAR Control Group, he attained his maximum years of service (7 years) as a MAJ, in 1999.  As such, he was considered by a mandatory board that convened in September 1999 and again in September 2000 but he was not selected by either board.  

5.  Despite his non-selection by two mandatory boards, HRC extended his mandatory removal dates by 3 years in order to give him an opportunity complete a total of 20 years of qualifying service to be eligible for retired pay at age 60.  During that period of time, not only did he fail promotion selection three more consecutive years, but he also did not attempt to earn any retirement points to complete 20 qualifying years of service.  This resulted in his discharge from the military in accordance with Title 10, USC, section 14505. 

6.  In addition, since he was prior enlisted it appears he could have enlisted to complete his 20 years.  There is no evidence to show he attempted to do so.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130008198



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ABCMR Record of Proceedings (cont)                                         AR20130008198



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